United States District Court, D. Montana, Missoula Division
W. MOLLOY, DISTRICT JUDGE.
seek to enjoin the Glacier Loon Project pending appeal of the
Court's December 11, 2018 Order, (Doc. 104). (Doc. 107.)
The motion is denied.
Standard A motion for an injunction pending appeal is
considered under the same standard as a motion for a
preliminary injunction. See Tribal Vill. of Akutan v.
Hodel, 859 F.2d 662, 663 (9th Cir. 1988); Fed.R.Civ.P.
62(d). A party seeking an injunction must show (1) a
likelihood of success on the merits, (2) it is likely to
suffer irreparable harm, (3) the balance of equities favors
an injunction, and (4) an injunction is in the public
interest. See Winter v. Natural Res. Def. Council,
555 U.S. 7, 20 (2008). The last two factors merge when the
federal government is the opposing party. Drakes Bay
Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir.
2014). A party seeking an injunction "must establish
that irreparable harm is likely, not just
possible." All. for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). The other
factors are then assessed on a sliding scale. Id. at
1135. For example, when the "balance of hardships tips
sharply in the plaintiffs favor," an injunction may
issue on a showing of only "serious questions going to
the merits." Id.
Likelihood of Success
appear to concede that while they cannot show they are likely
to succeed on the merits, they at the very least raise
serious questions as to those issues. (Doc. 108 at 22.) While
many of Plaintiffs' arguments are merely a rehash of
their summary judgment position, they raise some good points.
First, the dynamic status of the wolverine has complicated
the evaluation of the Project's impact on the species.
Second, while Plaintiffs did not previously argue or brief
their assertion that amending a deadline under the Endangered
Species Act ("ESA") cannot alter a deadline under
the National Forest Management Act ("NFMA"), they
raise that challenge now. As argued by Plaintiffs, there does
not appear to be precedent directly on point. See Esparza
v. SmartPay Leasing, Inc., 2017 WL 6731595, at *2 (N.D.
Cal. 2017). Though this argument may be waived, see Great
Old Broads for Wilderness v. Kimbell, 709 F.3d 836, 846
(9th Cir. 2013) (discussing administrative exhaustion),
Plaintiffs have "assert[ed] specific grounds as to
where or why this Court erred in its
decision," Native Ecosystems Council v. Marten,
2018 WL 4301371, at *1 (D. Mont. Sept. 10, 2018). Finally,
Plaintiffs emphasize that this Court labelled the 2014
grizzly bear decision a "close call." (See
Doc. 92 at 9.) As a result, Plaintiffs have raised serious
questions on the merits.
must show that they are likely to suffer an irreparable harm
in the absence of injunctive relief. All. for the Wild
Rockies, 632 F.3d at 1135. Such a showing is required
even in cases involving an ESA challenge. See Cottonwood
Envt'l Law Or. v. U.S. Forest Serv., 789 F.3d 1075,
1090-91 (9th Cir. 2015). That said, "establishing
irreparable injury should not be an onerous task for
plaintiffs," id. at 1091, and the standard is
met so long as a plaintiff can show that a "specific
project will likely cause irreparable damage to its
members' interests," id. at 1092.
argue that the Project will interfere with "the
naturally functioning ecosystems of the Forest and Project
analysis areas, in particular their interests in looking for,
viewing, studying, and enjoying elk, grizzly bears,
wolverine, and lynx undisturbed in their natural
surroundings." (Garrity Decl., Doc. 108-1 at ¶ 4.)
Plaintiffs further refer to "[l]ogging, burning,
road-building, road use, and road reconstruction" as
"ecological and esthetic degradations" that
"will render the area unsuitable for [Plaintiffs'
members']... esthetic, recreational, scientific,
spiritual, vocational, and educational activities."
(Id. at ¶ 6.) In later-provided declarations,
Plaintiffs also raise general concerns about how a logging
and treatment project may affect Lindbergh Lake and its
surrounding area. (Page Decl., Doc. 110; Giles Decl., Doc.
Plaintiffs fail to identify specific harms associated with
the Project. While they provide a general list of
ground-disturbing activities, they fail to show how the
activities of this specific Project will affect their
members. See Sierra Forest Legacy v. Sherman, 951
F.Supp.2d 1100, 1111 (E.D. Cal. 2013). The argument that
logging is per se enough to warrant an injunction has been
rejected. Earth Island Inst. v. Carlton, 626 F.3d
462, 474 (9th Cir. 2010). Moreover, the schedule of
ground-disturbing is greatly limited by the Swan Valley
Grizzly Bear Conservation Agreement. (See King
Decl., Doc. 109-1 at ¶¶ 8, 9 10, 16; Ruby Decl.,
Doc. 109-4 at ¶ 5.) Plaintiffs fail to show specific
activities that fall within the appellate timeframe would
permanently affect their interest. That is especially
important because over the long term, the Project involves
stewardship contracts that will require "road
decommissioning, re-contouring, fuels reduction and slashing
and pre-commercial thinning" as part of the logging
projects. (King Decl., Doc. 109-1 at ¶ 3; Dowling Decl.,
Doc. 109-2 at ¶ 6; Richardson Decl., Doc. 109-3 at
¶ 8.) Such activities will ultimately reduce sediment,
benefit wildlife, and help restore watersheds. (Dowling
Decl., Doc. 109-2 at ¶¶ 5, 7, 11, 21.)
treatment activities are expected to "facilitate
regeneration of desired species - western larch, western
white pine, and ponderosa pine" and improve overall
forest health. (See Id. at ¶¶ 5, 29.) And,
as discussed in more detail below, Defendants have shown that
Project activities will benefit a number of the protected
species and have minimal short-term impacts. Defendants also
identify a number of potential harms that may occur if the
Project is delayed any further, including deferring long-term
habitat improvement, (Ruby Decl., Doc. 109-4 at ¶¶
8, 14), and increased wildfire risk that threatens the entire
natural landscape, (Dowling Decl., Doc. 109-2 at ¶¶
18, 19; Ruby Decl., Doc. 109-4 at ¶¶9, 12, 13).
light of Plaintiffs' general allegations about the
impacts of the Project and the limitations placed on Project
activity, Plaintiffs fail to show irreparable harm.
Balance of Equities and Public Interest
Plaintiffs must show that the balance of the equities tip
sharply in their favor. All. for the Wild Rockies,